Friday, March 17, 2017

The statutorisation of our lives

The phrase, "The right thing to do" is both a statement of law and a statement of social etiquette, isn't it? At the heart of our interactions as individuals, as families, as communities and as societies, are prescriptions of what are the right things to do and the wrong things which shouldn't be done. The enforcement of these prescriptions is a mixture of written laws (written by legislatures and other rule-writing organisations such as Christian church institutions) and social conventions, such as fame or ostracism. I am pretty mulish when it comes to arguing that these prescriptions are all "laws"; after all, they permit us to do some things and punish us for doing other things.

Take the question of parental responsibility and the termination of pregnancies. Received wisdom (well, as received by the liberal wing of my community) has it that a woman's right to choose is or should be absolute. If she chooses to carry a pregnancy to term, that is a choice she can only make alone. It is exclusively her choice too whether or not she will terminate the pregnancy and her choice will not be subject to review or veto by anyone.

This is a simple enough proposal to champion. The law, for the most part, doesn't recognise most foetuses as "children". It is why "morning after" pills are permitted; after all, one of the effects of the morning after pill is that it might prevent a fertilised egg from attaching to the uterus. In most jurisdictions where the termination of pregnancies is not a hot-button social, cultural, religious or political hot potato, pregnancies can be terminated up to the end of the second trimester, six months, for any number of reasons, including to protect the health of the mother, to protect the life of the mother, that the pregnancy was as a result of rape or incest, or that the foetus has revealed serious defects that will affect the child's quality of life after it is born.

On these reasons alone, I would have absolutely support the declaration of a law, rule or social precept that a woman's right to choose is absolute and inviolable. However...

As the debate surrounding Article 26(4) showed, today, even issues that had been excluded from the ambit of constitutions, laws, regulations or by-laws, have now been hijacked by a societal desire to prescribe laws for everything. It's wording is a clue to the social, religious and political battles that were fought over "abortion",

Abortion is not permitted unless, in the opinion of a trained health professional, there is need for emergency treatment, or the life or health of the mother is in danger, or if permitted by any other written law.

The erstwhile presumption that a woman's right to choose was absolute has now been shattered by a presumption that her right to choose is now wrapped up in the opinions of third parties who had absolutely nothing to do with the conception and for reasons that have nothing to do with the conception. What was once a generally accepted social convention is now part of a burgeoning invasion of social spaces with the butcher's cleaver of the Constitution and the wrecking ball of the law-maker in parliament.

The same is true about whether or not a man could refuse to meet his obligations as the father of a child. In perfect patriarchy, men choose whom to acknowledge, and therefore support, as their children. Men have been permitted for millennia to abandon their children at the drop of a hat with relatively minor consequences. Often, when men refuse to meet their obligations to their children, let alone their families, fewer and fewer of their fellow men are interested in holding these men to account. It is why when you hear the expression "single parent" it almost always means "single mother" or "unmarried mother". However...

Before we decided that we would create statutes to cover every possible social sin, great store was placed in the ability of a man to tend to his family, whether or not those who constituted his family did so by way of marriage. But the situation is vastly different, from a lawyer's perspective, than it was even a decade ago. It began with the Children Act, 2001, which established firmly the legal principle of the "best interests of the child" and it has now been cemented by Article 53 of the Constitution on the rights of the child, among which is the right of a child to

parental care and protection, which includes equal responsibility of the mother and father to provide for the child, whether they are married to each other or not.

The "best interests of the child" principle wouldn't have taken root unless it were socially endorsed as one of those "right things to do." Man can still, and many do, abandon their children without a care in the world. However, social mores have also evolved, in some case they have evolved shockingly swiftly, and a man can no longer expect to hold his head high for being, in the patois of the day, a deadbeat dad. What was a social precept is now the foundation of the law on the rights of the child. A social rule is now a constitutional one.

What I hope to convey to you is that it isn't possible to pigeonhole social commentary as being completely divorced from cultural or statutory implications any more. It is not how knowledge evolves any more and it is certainly not how we organise ourselves these days. A public statement can expect reactions from different and differing planes. The bargain we have made for ourselves in the past decade alone as a people, a community and a society is one that insists on the statutorisation of almost every aspect of our life. If we carry on in this vein, someone will suggest a law on how to take a shit - and we will go along with it.